Justice Delayed: USA vs. Sabre Tech

Justice DelayedUSA vs. Sabre Tech
By Stephen P. Prentice

Remember ValuJet? The DC9 that went down in the Everglades? The mechanics who worked for Sabre Tech and handled the oxygen generators? They were arrested and charged with criminal conduct. They were found not guilty, but Sabre Tech was found guilty. The conviction was appealed.

It was recently announced by the 11th Circuit Court of Appeals that the charges and ultimate convictions against the company were not only improper but contrary to the law. Read this as . . . the U.S. Attorney and the trial court Judge made a mistake. You probably missed the small note in the newspapers about this significant reversal of the Sabre Tech conviction. The defense did an excellent job!

A little history
On May 11, 1996, a ValuJet aircraft crashed in the Florida Everglades while attempting to make an emergency return to Miami. All aboard perished. The crash investigation focused on old oxygen generator containers that were in boxes in a baggage compartment for shipment to Atlanta for overhaul. These devices, when installed, supply oxygen to passengers, when needed, by producing it when the canister is activated. Cessna and some others use the same type of canister in their pressurized aircraft for emergency oxygen. These cans are routinely removed for overhaul after 12 years of service. When removed they should have a protective cap installed to prevent their accidental activation and release of oxygen. The trigger mechanism must be secured to prevent its firing. Hardware on the units in this case was improperly secured with tape and the units shipped without the protective caps.

The removed units were wrapped, placed in boxes, delivered to the airport, and put in the forward baggage compartment of Flight 592 for delivery to Atlanta. Shortly after takeoff a fire broke out in the baggage compartment resulting in the accident. Evidence suggested that some unrestrained tires may have crushed the oxygen units and released the gas.

Criminal charges
Criminal investigations and charges have been popular since the watershed case of USA vs. Eastern Airlines. Law enforcement has elbowed its way into the investigation of aircraft accidents big time. This is, of course, on top of the FAA, DOT, local agencies, and last but not least the National Transportation Safety Board (NTSB) charged with the duty of finding the cause of any accident.

In many circles, accidents are seen as opportunities for law enforcement people to advance their careers. This can include U.S. attorneys, some judges, local district attorneys, and others seeking to get their names in the papers. This type of grandstanding by law enforcement has many times resulted in halting meaningful investigation of an accident by NTSB officials. When a witness sees the law coming they will clam up and refuse to give any information. Generally, good advice! Experience has shown that by providing information you may get arrested.

Politics is seen by many as the driving force behind the criminalization of aircraft accidents. There has been talk and work toward granting immunity to mechanics, pilots, and others in the chain of responsibility. Positive steps in this direction have been taken. This, of course, would enhance the NTSB's ability to gather evidence from people who should otherwise be fearful of interrogation by FBI or others. In the Alaska Airlines accident case, mechanics refused to give any information to anyone without immunity. They were right. We should all keep this in mind.

The Sabre Tech case
In July of 1996, a Federal Grand Jury in Florida returned a 24 count criminal indictment against Sabre Tech and the three employees who were the mechanics concerned with the oxygen canister removal and storage. You may recall that this was in addition to the expected FAA enforcement or civil penalty proceedings which were being investigated at the same time.
When criminal and civil proceedings are held simultaneously, as in this case, it becomes clear that accident investigation information has been used to gather information for criminal cases.

The criminal charges against the mechanics and the company included false statements on maintenance records; causing hazardous materials to be transported in air commerce; failing to properly package, label, and mark the materials; recklessly causing the transportation of the hazardous materials; failing to train employees in hazmat regulations; and willfully (intentionally) placing destructive devices on a plane, a part of the Aircraft Sabotage Act.

Sabre Tech's lawyers moved to dismiss the bulk of the indictment because the government had presented insufficient evidence to support the charges, among other grounds. All such motions were denied and the case went to trial.

The mechanics were acquitted by the jury of all charges. Sabre Tech was found guilty and sentenced to pay a fine of $2,000,000 and restitution of $9,060,040.

The appeal
Upon Sabre Tech's appeal the court had to wrestle with a technical argument made by Sabre Tech's lawyers that said, in effect, that recklessly causing the containers to be transported was not part of the law that the defendants were charged under. After a long and detailed examination the appeals court agreed.

Sabre Tech's very astute lawyers argued that the regulations it was convicted of recklessly violating were not enacted under the FAA regulatory system. These were regulations under the Hazardous Materials Transportation Act (HMTA) and this law penalizes only willful (intentional) violations of its regulations. The conclusion would have to be that the government improperly charged Sabre Tech and the mechanics with crimes. The appeals court concurred. Note that this same argument was proposed before and during the trial but was rejected by the trial judge.

Granted, this reversal was on a technical point, but that is what the law is all about. At the time of the ValuJet crash, criminal liability existed only for willful (intentional) violations of the hazmat rules. Sabre Tech was charged under the HMTA which contains no criminal liability for reckless conduct.

Postscript
This accident should not have happened. Sabre Tech and its employees however did not intend to cause the death of the passengers on board Flight 592 when they packed and transported the oxygen canisters. The problem with the prosecutors case was that they did not do their homework. In their haste to get the case to the trial, they overlooked the fact that the regulations relied on to charge the crimes were in fact invalid as they were applied.

The appeals court set aside Sabre Tech's convictions on all of the reckless counts. These were, of course, the most serious. The only count left was the failure to train their employees on hazmat procedures.

The case was sent back to the trial judge for re-sentencing. The appeals court also said that at this point the court could not impose any restitution requirement.

The FAA case
Early last year Sabre Tech settled the FAA's case by agreeing to pay civil penalties (fines). The agreement reduced a civil penalty to $1,750,000 and dropped 10 of the 37 allegations regarding the company's handling of hazardous materials. At that time the FAA said that, "this civil penalty was the highest settlement they had for hazardous materials handling and reflects the seriousness of the case." The FAA also agreed not to pursue charges against Saberliner Corp. of St. Louis, Sabre Tech's parent company. Another good job by the defense!

Now after all of these legal actions are over, will the government get any money at all?

Sabre Tech is no longer in business. The FAA penalty will probably never be paid. It is doubtful that any of the fines ultimately imposed in the criminal case will ever be paid. Remember, in the FAA case the parent company could not be responsible for payment of any fines. It is doubtful that they could be reached in the criminal case as well.

So, in this case, the only ones to come out ahead are the lawyers and the bureaucrats. The taxpayers wind up footing the bill for what appears to be a fruitless pursuit. Loss of jobs and shutdown of the company appear to be the primary result of what was an unfortunate accident.

Was justice done? You make the call. AMT

Stephen Prentice Stephen P. Prentice is an attorney whose practice involves FAA-NTSB issues. He has an Airframe and Powerplant certificate, is an ATP rated pilot, and is a USAF veteran.
E-mail: aerolaw@att.net

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